The Theory of Norm Conflict Solutions in International Investment Law
SUSTAINABLE DEVELOPMENT IN INTERNATIONAL INVESTMENT LAW, Markus Gehring, Andrew Newcombe, and Marie-Claire Cordonier Segger, eds., Forthcoming 2010
12 Pages Posted: 12 Jan 2010 Last revised: 4 Aug 2010
Date Written: August 1, 2009
This chapter commences with a discussion of the possibilities and forms of norm-conflict in international investment law. The discussion illustrates that tribunals tend to focus on the International Investment Agreement before them and not to delve deeply into questions of norm-conflict, while scholarship utilises orthodox conflict resolution maxims. Both tactics can be criticised from a theory of positive international law. Pragmatic solutions - based as they are on convenience, rather than analysis - may not reflect the underlying positive law. Scholars using conflict-resolving maxims (like lex posterior or lex specialis), on the other hand, are far too optimistic about what the employment of the maxims - even if they had a sound foundation in positive law - is able to affect vis-à-vis norm-conflict.
Keywords: norm conflict, international investment law, lex posterior maxim, lex specialis maxim
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